Hon'ble Mr. R. Satapathy, Administrative Member)
Challenging the rejection of the applicant's request for correction of his date of birth by the impugned order dated 20.1.2012 passed by the second respondent, this application is filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 for quashing of the said order and prays for a direction to correct his date of birth as 20.1.1957 instead of 20.1.1952 and continue him in service till 31.1.2017.
2. The applicant was initially appointed as Casual Labour Khalasi on 1.2.1979 and granted Temporary Status on 1.1.1983 in Railway Electrification and empanelled and posted as permanent Khalasi on 22.3.1986. It is stated by the applicant that the Service Register and Leave Chart of the applicant were opened after he was granted Temporary Status. According to him, his date of birth is 20.1.1957 but the same has been wrongly entered as 20.1.1952 in the Service Register and correctly entered as 20.1.1957 in the Leave Chart. He came to know the mistake only when he received the Pension Book in December 2011 mentioning his date of retirement as 31.1.2012. The representation dated 20.12.2011 made by the applicant for correction of his date of birth has been rejected by the impugned order dated 20.1.2012 besides stating that his date of retirement is 31.1.2012. Aggrieved by the order, the OA has been filed for the aforementioned relief.
3. On notice, the respondents have entered appearance and filed a detailed reply statement. At the outset, they have raised a preliminary objection that the OA is barred by limitation. Citing the Hon'ble Supreme Court judgment in the case of U.P. Madhyamik Shiksha Parishad and others Vs. Raj Kumar Agnihotri (2006 SCC(LandS)96), the respondents contended that application for correction of date of birth must be made within the limitation period prescribed under the Rules and the claim regarding correction of date of birth could not be entertained after several decades, especially on the eve of superannuation. It is further stated by them that the applicant was aware of his date of birth right from the entry in Railways from the year 1979 and he has acknowledged in the second page of Service Register that his date of birth is 20.1.1952. As such, the contention of the applicant that he came to know the mistake only when he received the Pension Book is incorrect, especially when he got his Pay Slips every month wherein his date of birth is indicated as 20.1.1952. According to them, the claim of the applicant for correction of date of birth at the fag end of his career is barred by the law declared by the Hon'ble Supreme Court judgments in various cases. Therefore, they have prayed for dismissal of the OA.
4. A rejoinder has been filed by the applicant stating that the request is to be taken for correction of clerical mistake while making entry in the Service Register and not as alteration of date of birth, since the entries were made by a Clerk.
5. We have considered arguments advanced by Mr. Abdul Ajees, learned counsel for the applicant and Mr. G. Ramalingam, learned counsel for the respondents and perused the pleadings and the materials furnished by them.
6. The crucial issue to be decided in the case is whether the date of birth of the applicant is 20.1.1957 as claimed by the applicant or 20.1.1952 as contended by the respondents.
7. A perusal of the record shows that the applicant had entered service way back in 1979 and his Service Register was opened in the year 1986. His date of superannuation was mentioned as 31.1.2012 and he has made his first request for correction of date of birth only on 20.12.2011. Thus, it is an admitted fact that the first representation for correction date of birth has been made by the applicant only on 20.12.2011 i.e. one and half months before his date of superannuation.
8. The issue of correction of date of birth on the verge of retirement of the employee has been dealt with by the Hon'ble Supreme Court in a number of judgments. A few cases are cited below:
1. Registrar General, High Court of Madras Vs. M. Manickam and others(2011(9) SCC 245) wherein it is held that application for date of change of date of birth in relevant records supposed to be made within 5 years of entry into service. Therefore, no relief can be granted if an application is not made within 5 years of entry into service by the concerned employee.
2. State of Haryana Vs. Satish Kumar and another (2010(6)SLR 513) wherein it is held as follows:
"16.In the circumstances in our view, the High Court as well as the courts below clearly erred in entertaining the claim of respondent No.1 for correction in his date of birth at a belated stage. In such a matter, we are concerned with the correction in the date of birth for the purpose of service record and not for any other purpose. The observation of this Court in para 7 of the Union of India v. Harnam Singh 1993(2)SCC 162:1993(2)SLR42(SC) in this behalf are quite apt
"7. A Government servant, after entry into service, acquires the right to continue in service till the age of retirement, as fixed by the State in exercise of its powers regulating conditions of service, unless the services are dispensed with on other grounds contained in the relevant service rules after following the procedure prescribed therein. The date of birth entered in the service records of a civil servant is, thus of utmost importance for the reason that the right to continue in service stands decided by its entry in the service record. A Government servant who has declared his age at the initial stage of the employment is, of course, not precluded from making a request later on for correcting his age. It is open to a civil servant to claim correction of his date of birth, if he is in possession of irrefutable proof relating to his date of birth as different from the one earlier recorded and even if there is no period limitation prescribed for seeking correction of date of birth, the Government servant must do so without any unreasonable delay. In the absence of any provision in the rules for correction of date of birth, the general principle refusing relief on grounds of laches or stale claims , generally applied by the courts and tribunals. It is nonetheless competent if the Government to fix a time-limit, in the service rules after which an application for correction of date of birth of a Government servant can be entertained. A Government servant who makes an application for correction of date of birth beyond the time, so fixed, therefore, cannot claim as a matter of right, the correction of his date of birth even if he has good evidence to establish that the recorded date of birth is clearly erroneous. The law of limitation may operate harshly but it has to be applied with all its rigour as the courts or tribunals cannot come to the aid of those who sleep over their rights and allow the period of limitation to expire. Unless altered, his date of birth as recorded would determine his date of superannuation even if it amounts to abridging his right to continue in service on the basis of his actual age............."
17. This being so, the courts should not have entertained the claim of the respondent belatedly and beyond the period provided in the rules. The rules, in the instant case, all throughout required such application to be made within two years. Therefore, the courts clearly erred in finding fault with the applicant for alleged applying the Notification of 13.8.2001 retrospectively which was not the case over here." 3. In the case of Punjab and Haryana High Court at Chandigarh Vs. Megh Raj Garg and another (2010 (4) SLR 755), the Apex Court held that the declaration of age made at the time of or for the purpose of entry into government service is conclusive and binding on the government servant and correction of date of birth is not permissible when it is made beyond the period prescribed in the rules.
4. The earliest and most important judgment is in the case of Union of India Vs. Harnam Singh (AIR 1993 SC 1367). In paragraph 11, it is held as follows:
"11. The approach of the Tribunal does not commend to us as it tends to create an invidious discrimination, unsustainable in law, by creating two artificial classes of Government Servants between those who joined service before and after 1979. It is a too simplistic way of looking at the issue, by ignoring the ground realities and the intention of the rule making authority to discourage stale claims and non-suit such government servants who seek the alteration of their recorded date of birth belatedly and mostly on the eve of their superannuation. To say that the respondent, even though he signed the service book at a number of places at different times and saw the seniority list, may not have still come to know as to what his recorded date of birth was, is to ignore the normal human conduct and put preminim on negligence. The observation of CAT quoted above are neither logical nor sound. Of course, Note 5 to FR 56(m) was incorporated only in 1979 and it provides for request to be made for correction of date of birth within five years from the date of entry into service but what is necessary to be examined is the intention of the rule making authority in providing the period of limitation for seeking the correction of the date of birth of the Government Servant viz., to discourage stale claims and belated applications for alteration of date of birth recorded in the service book at the time of initial entry. It is the duty of the courts and tribunals to promote that intention by an intelligible and harmonious interpretation of the rule rather than choke its operation. The interpretation has to be the one which advances the intention and not the one which frustrates it. It could not be the intention of the rule making authority to give unlimited time to seek correction of date of birth, after 1979, to those government servant who had joined the service prior to 1979 but restrict it to the five year period for those who enter service after 1979. Indeed, if a government servant, already in service for a long time, had applied for correction of date of birth before 1979, it would not be permissible to non-suit him on the ground that he had not applied for correction within five years of his entry into service, but the case of government servant who applied for correction of date of birth only after 1979 stands on a different footing. It would be appropriate and in tune with harmonious construction of the provision to hold that in the case of those government servants who were already in service before 1979, for a period of more than five years, and who intended to have their date of birth corrected after 1979, may seek the correction of date of birth within a reasonable time after 1979 but in any event not later than five years after the coming into force of the amendment in1979. This view would be in consonance with the intention of the rule making authority."
Thus from the judgments cited supra, it may be seen that the Hon'ble Supreme Court has clearly held that the belated claim for correction of date of birth , especially on the verge of retirement is not to be entertained even if an employee has got adequate proof. In the instant case, it is not in dispute that the applicant has made his representation one and half months before his retirement.
9. When we go through the representation of the applicant dated 20.12.2011(Annexure A-2), he has stated in para 3 as follows:
"Sir, It is understood recently to my shock, that my date of birth is erroneously entered in the Railway Records as 20.01.1952 instead of 20.01.1957 and accordingly my date of retirement was mentioned as 31.01.2012 instead of 31.01.2017 as well as in pay slips."
The above statement of the applicant clearly shows that the applicant is aware that his date of superannuation is 31.1.2012. It is to be mentioned here that when the pay slip is issued on a regular basis on every month and the applicant has the information about his date of superannuation, it is not known why he has made an application for change in his date of birth only on 20.12.2011. Such a belated application on the verge of retirement, according to us will not be sustainable.
10. The respondents have produced the first page of the Service Register wherein the date of birth of the applicant has been entered as "20.1.52" and the applicant has affixed his thumb impression to the effect that he has acknowledged the entries made therein. Therefore, even in the year 1986, his date of birth has been recorded as 20.1.1952 with the full knowledge of the applicant. The entries are made by the responsible officer in the Railway Department and there is nothing on record to show that such an officer has got any enemity towards the applicant to write an incorrect information. Further, we have also seen that the date of birth of applicant as 20.1.1952 has been reflected in the Seniority List of Khalasis issued by the respondents on more than one occasion and he has not made any objection.
11. Learned counsel for the applicant has placed heavy reliance on the Transfer Certificate issued by the School(Annexure A.8) ,the letter dated 3.1.2012 issued by the office of the Chief Project Manager(Annexure A.7) and the letter dated 26.12.2011 of the APO(Annexure A.3). In this connection, we would like to mention here that the very same officer, APO vide his letter dated 20.1.2012(Annexure A.1) has rejected the request of the applicant for correction of his date of birth. He has specifically mentioned as follows:
"3.The retirement list was published by this office on 02.09.2010 and 22.11.2011 and your date of retirement was mentioned as 31.01.2012 and the same was acknowledged by you on 22.11.2011.
4. You are retiring from Railway Service on 31.01.2012 as per your Service Register. You have submitted your representation dated 22.12.2011 for change of date of birth at the fag end of your retirement period.
In view of the above your request for change of Date of Birth is not agreed to."
12. Learned counsel for the respondents has strongly argued that when the Service Register was opened in the year 1986, the applicant was in possession of his School Leaving Certificate which is marked as Annexure A.8 and contains the date of birth as 20.1.1957. Therefore, he could have produced the same before the competent authority for making proper entries. However, he has not done so. The date of birth of the applicant has been entered as 20.1.1952 in the Service Register and thereafter in the Seniority List published during the years 1991, 1997, 2001 and 2010, the said date of birth has been mentioned. The applicant had multiple opportunity to know his date of birth is recorded as 20.1.1952 and he has not objected to the said Seniority Lists and he has also known his retirement date as 31.1.2012 vide the office letter dated 2.9.2010. He has not objected to this and has not made any representation. Therefore, we are unable to grant any relief to the applicant since he has made belated claim on the verge of his retirement, especially when he has got multiple opportunities to know his date of retirement as mentioned earlier.
13. As we have already discussed the various judgments of the Apex Court, especially the case of Harnam Singh wherein the Hon'ble Supreme Court has laid down the law with regard to correction of date of birth. It is also very clearly mentioned in note 5 to FR 56 that correction of date of birth has to be made within five years from the date of entry into service and the claim made thereafter will not be sustainable. In the instant case, the applicant has made his first application for change his date of birth only in the year 2011 eventhough he entered into Railway Service as Khalasi in Temporary Statue in the year 1983. Hence the case of the applicant is squarely covered by the Apex Court order in Harnam Singh case cited supra.
14. In view of the various discussions made in the preceding paragraphs and placing reliance on the law laid down by the Hon'ble Supreme Court in the case of Harnam Singh, the plea of the applicant on the verge of his retirement cannot be accepted to grant him the benefit of extention of five more years taking his date of birth as 20.1.1957. He has already retired on 31.1.2012. Under such circumstances, we do not find that any relief can be granted to the applicant.
15. For the aforesaid reasons and placing reliance on the judgments of the Hon'ble Supreme Court cited supra, we dismiss the application as devoid of merits. In the circumstances, no order as to costs.